Opinion
Case No. C-3-96-010
March 3, 1999
Patrick M. Flanagan, Esq., Charles Lease and Charles Carter for plaintiff.
Robin B. DeBell, Esq., for defendant.
This litigation arises out of efforts by the Defendant to abate what it deemed to be a nuisance on a parcel of real property owned by the Plaintiff in the City of Springfield, Ohio. By order dated October 10, 1994, the Defendant notified the Plaintiff that his property was a nuisance and ordered him to abate that nuisance, within 15 days of the receipt of the letter, by removing a number of items, including an accumulation of tires, from that property. The order also informed the Plaintiff that, if he failed to abate the nuisance, the Defendant and/or its authorized agents would do so and assess the Plaintiff for the cost of same. In addition, the order advised the Plaintiff that any appeal was required to be filed with the Code Enforcement Manager, within 10 days of its receipt.
Plaintiff had leased the property to State Tire Shredding Fuel Company ("State Tire"), which had operated a tire shredding operation on the property.
Specifically, the order directed Plaintiff to remove all tires, rubbish and debris from the side building and yard; all concrete garbage bags, car parts and pieces, junked vehicles, rubbish debris and litter discarded throughout the exterior property area and lot west of the building; and all commercial truck trailers, that the Plaintiffs' tenant had abandoned, on the west side of the building.
The Plaintiff did not appeal the order, nor did he abate the nuisance. Rather, during the ensuing months, the parties exchanged correspondence about cleaning up the Plaintiff's property. On November 2, 1994, Plaintiff wrote to the Defendant disclaiming responsibility for the condition on his property, stating that he was also concerned about its condition and had instructed "those responsible" to take action "to get the premises in good condition" and, in addition, promising to try to meet with the Defendant's Law Director to decide upon a mutually agreeable plan to remedy the situation. On January 18, 1995, Plaintiff wrote again to the Defendant, expressing regret for his inability to follow his November 2nd letter with a visit, requesting that the Defendant reply to his previous letter and promising to submit a plan to clean up his property, if asked to do so. On February 21, 1995, Mary J. Wells ("Wells"), Defendant's Manager of Code Enforcement, wrote to the Plaintiff, stating that the Defendant was in the process of securing bids to remove the junk and debris on Plaintiff's property and requesting that the Plaintiff contact her, if he intended to do the work himself. On February 27, 1995, the Plaintiff wrote to Wells, stating that he had been "vigorously pursuing making arrangements" to bring his property into compliance and that he would do whatever was necessary to accomplish the task, most of which would be completed within the next 90 days.
Wells also reminded the Plaintiff that he would be billed for the costs incurred by the Defendant in removing the junk and debris.
There is no indication that, between February 27, 1995, and May 28, 1995 (90 days after February 27th), the Plaintiff did anything to clean up his property.
There is no evidence before the Court that the parties communicated, after Plaintiff sent his February 27, 1995, letter to Wells, until late October of that year. On October 24, 1995, the Plaintiff was served with a criminal summons, charging him with two counts of operating a salvage yard without a license on his property in Springfield. In his affidavit, the Plaintiff states that both he and his attorney contacted the Defendant after he was served with the summons and that he asked for some accommodation so that he could work to remove the tires on his property. On October 31, 1995, Wells wrote again to the Plaintiff, informing him that a recent inspection revealed that he had not complied with the October, 1994, abatement order and that the Defendant intended to have the exterior and interior of the building cleaned. Wells also requested that the Plaintiff remove from his real estate, by November 13, 1995, all items of personal property he wished to keep. By letter dated December 5, 1995, Plaintiff's attorney, Patrick Flanagan ("Flanagan"), wrote to Defendant's Law Director, Robin DeBell ("DeBell"), confirming that the two had spoken on the telephone regarding the Defendant's intention to enter into a contract with a company to remove the tires on Plaintiff's property and stating that, although the Plaintiff was willing to cooperate in the removal effort, he (Plaintiff) could not agree to be responsible for any contract executed by the Defendant, including one in excess of $100,000, the amount mentioned by DeBell in the telephone conversation. Flanagan also explained that the Plaintiff was attempting to have the tires removed for a lesser sum and requested that the Defendant refrain from voting on or executing a contract for a period of 21 days. On December 19, 1995, Flanagan wrote again to DeBell, setting forth the commitments the Plaintiff had made during a meeting at DeBell's office the previous day. DeBell stated that the Plaintiff was investigating options for removing the tires and would make every effort to have signed contracts to accomplish that by January 9, 1996.
One of those counts was subsequently dismissed, as being barred by the statute of limitations, and the Plaintiff was found not guilty on the other count.
Flanagan also stated that, as a gesture of good faith, the Plaintiff would pay the back taxes he owed on the property by January 2, 1996.
On December 21, 1995, the Defendant's City Commission adopted Ordinance No. 95-406, which authorized the City Manager to enter into a contract, not to exceed $122,242, with Rumpke Waste, Inc. ("Rumpke") to remove and to dispose of the tires and shredded rubber which were located upon the Plaintiff's property and to seek to recover all sums expended in the effort. On December 29, 1995, the Defendant entered into such a contract with Rumpke.
On January 10, 1996, the Plaintiff initiated this litigation by filing his Complaint (Doc. #1). In that pleading, the Plaintiff asserts a claim under 42 U.S.C. § 1983, alleging that, by passing Ordinance No. 95-406, the Defendant violated his (Plaintiff's) rights secured by the United States Constitution. In particular, the Plaintiff alleges that the passage of Ordinance No. 95-406 caused him to suffer a deprivation of property without due process and a denial of equal protection, in violation of the Fourteenth Amendment, and a taking of property without just compensation, in violation of the Fifth Amendment. Plaintiff also alleges that Ordinance 95-406 violates the Ex Post Facto clause of Article I, Section 10, of the United States Constitution. With his Complaint, the Plaintiff sought compensatory damages. The Defendant has filed a Counterclaim against the Defendant, seeking to recover $122,242, the sum it expended on its contract with Rumpke. See Doc. #3.
In his Complaint, the Plaintiff also sought injunctive relief, prohibiting the Defendant from entering into a contract with Rumpke or preventing any such contract from being performed. Since Rumpke performed its obligations under its contract with the Defendant, shortly after this lawsuit was filed, the Court has granted summary judgment to the Defendant on Plaintiff's request for injunctive relief. See Doc. #15.
On July 15, 1997, this Court entered a Decision in which it sustained in part and overruled in part the Defendant's Motion for Summary Judgment. See Doc. #15. Of particular present importance, the Court rejected the Defendant's argument that principles of res judicata prevent the Plaintiff from now challenging the finding in the October, 1994, abatement order that his property was a nuisance, because he did not appeal that order. The Court agreed with the Defendant that, as a matter of Ohio law, principles of res judicata prevent a person from challenging, in a subsequent lawsuit, an unappealed administrative finding that his property constituted a nuisance. See State ex rel. Casale v. McLean, 58 Ohio St.3d 163, 569 N.E.2d 475 (1991); Annis v. City of Dayton, 1991 WL 12047 (Ohio App. 1991); Platt v. City of Dayton, 1988 WL 131913 (Ohio App. 1988). However, the Court concluded that the Defendant was not entitled to summary judgment, because it had not established, as a matter of law, that this Plaintiff had a right of appeal. In addition, the Court questioned whether such a right of appeal would prevent, as a matter of federal law, the Plaintiff from litigating the question of the existence of a nuisance in the context of resolving his federal law claim under § 1983. This Court noted that, under University of Tennessee v. Elliott, 478 U.S. 788, 794 (1986), the unreviewed final decision of a state administrative body would be given preclusive effect, only when "acting in a judicial capacity . . . [it] resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate." Id. at 799 (quotingUnited States v. Utah Construction Mining Co., 385 U.S. 394, 422 (1966)). Herein, there was neither evidence that the Defendant had been acting in a "judicial capacity" when the abatement order was issued, nor evidence that the order had been made after the Plaintiff had had an opportunity to litigate the question of whether his property constituted a nuisance. The Court also directed the Defendant to file a supplemental motion for summary judgment to resolve those and other issues presented by this litigation.
The Defendant filed such a motion. See Doc. #17. On March 30, 1998, this Court overruled same, concluding once again that the Defendant had failed to establish that there was a genuine issue of material fact as to whether the Plaintiff had a right to appeal the October, 1994, nuisance abatement order. See Doc. #21. In addition, the Court concluded that an appeal that provides a property owner "a full and fair opportunity to argue his version of the facts and an opportunity to seek out review of any adverse findings" could provide sufficient due process and meet the standards set forth in Elliot. Id. at 3. However, given the absence of evidence concerning the nature of the appeal to which the Plaintiff was entitled, assuming that such an appeal were available to him, the Court also concluded that this question constituted a genuine issue of material fact. Thus, the Court identified two issues in need of resolution, to wit:
(1) whether the right of appeal from a decision declaring a nuisance, pursuant to Chapter 1323 of the Ordinances of the City of Springfield, existed prior to October 11, 1994, and (2) assuming such a right existed, what is the exact nature of such an appeal (de novo vs. deferential review, etc.).Id. at 4.
The Court conducted a telephone conference call with counsel on April 13, 1998, in order to discuss and to come to an agreement on procedures to resolve those issues. See Doc. #22. During that conference, it was agreed that the parties would file jointly prepared Stipulations of Fact addressing three issues, to wit:
whether (1) a right of appeal from a decision declaring a nuisance, pursuant to Chapter 1323 of the Ordinances of the City of Springfield, existed prior to October 11, 1994; (2) assuming such a right existed, what is the exact nature of such an appeal (de novo vs. deferential review, etc.); and (3) assuming such a right of appeal existed, what is the exact nature of the hearing provided on appeal (the presentation of witnesses, oral argument, etc.).Id. at 1. The parties were also directed to file brief cross motions for summary judgment. Id. at 2. The parties have filed Jointly Agreed Upon Stipulations of Fact (Doc. #23) and cross motions for summary judgment (Docs. #24 and #25), upon which the Court rules herein. The Court begins its analysis by setting forth the standards which govern all motions for summary judgment.
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Of course, the moving party:
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Id. at 323. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford Co., 886 F.2d 1472, 1478 (6th Cir. 1989).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are . . . `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. _Anderson, 477 U.S. at 255 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. _denied, 494 U.S. 1091 (1990). See also L.S. Heath Son, Inc. v. ATT Information Systems, Inc., 9 F.3d 561 (7th Cir. 1993); _Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 113 S.Ct. 98 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment. . . ."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
The Court has indicated that the following issues must be resolved, to wit: whether a right of appeal existed prior to October 11, 1994, and, if so, the exact nature of such an appeal (de novo vs. deferential and does such an appeal permit witnesses and oral argument to be presented). In the Jointly Agreed Upon Stipulations of Fact, the parties agree that, before October 11, 1994, § 1323.07 of the City of Springfield Codified Ordinances provided a right to appeal any decision of the Development Director to the Board of Building Appeals. See Doc. #23 at 3. Indeed, the parties agreed that such a right of appeal existed at least as early as November 27, 1990. Id. The parties were not able to agree on the nature of such an appeal, i.e., whether such an appeal would be de novo or deferential and whether the Plaintiff would have had the right to present witnesses and to make oral arguments. They did, however, stipulate to certain matters which are relevant to the resolution of those questions:
2. The Board of Building Appeals[,] established by Section 1315.01 of the Codified Ordinances of The City of Springfield, Ohio[,] is a certified municipal board of building appeals, certified by the State Board of Building Standards pursuant to the provisions of Ohio Revised Code Chapter 3781.
3. As a certified municipal board of building appeals, The City of Springfield, Ohio[,] Board of Building Appeals is obligated to proceed pursuant to Ohio Administrative Code Sections 4101:2-1-75 and 4101:2-1-76 (Exhibits "C" and "D"), when hearing and deciding adjudication hearings within the jurisdiction of and arising from orders of the local building official in the enforcement of Chapters 3781 and 3791 of the Revised Code and rules adopted thereunder.
4. No provision of the Springfield Board of Building Appeals' "order of business," its rules and regulations, or Ohio Administrative Code Sections 4101:2-1-75 or 4101:2-1-76 indicates any deference is to be given to the orders of the Director of the Department of Planning and Development, nor do such provisions state that a board hearing is to be conducted de novo.Id. at 3-4.
As the Plaintiff argues, the October 10, 1994, nuisance abatement order was not issued pursuant to Chapters 3781 or 3791 of the Ohio Revised Code or rules promulgated thereunder. Therefore, The Board of Building Appeals would not have been required, by state law, to comply with the provisions contained in §§ 4101:2-1-75 and 4101:2-1-76 of the Ohio Administrative Code when it decided an appeal from a nuisance abatement order. However, in order to demonstrate that the Board of Building Appeals would have employed those provisions to decide such an appeal, the Defendant has provided the affidavit of Edward Kleppel ("Kleppel"), the Secretary to the Board of Building Appeals at all times relevant to this litigation. Therein, Kleppel states that the Board of Building Appeals hears and decides appeals from matters arising under Chapters 3781 and 3791 of the Ohio Revised Code, as well as from nuisance abatement orders under Chapter 1323 of the Springfield Codified Ordinances. Regardless of what type of decision is being appealed, Kleppel states that the Board of Building Appeals "upholds, reverses or modifies the orders at issue pursuant to the findings set forth at Ohio Administrative Code Section 4101:2-1-75(A)((1)-(3)." According to Kleppel, the Board of Building Appeals will not give deference to the Director of the Department of Planning and Development, who has issued the nuisance abatement order. Rather, it "may reverse or modify an order if it finds that the order is contrary to law, contrary to a fair interpretation or application of the law, or that a variance from the provisions of the law in a specific case will not be contrary to the public interest where a literal enforcement of such provisions will result in unnecessary hardship." In addition, Kleppel states that the Board of Building Appeals provides for the attendance of witnesses, testimony under oath, the introduction of other evidence and a stenographic or mechanical record of the testimony. Finally, Kleppel states that an appellant may both present evidence to and make oral argument before the Board of Building Appeals. The Plaintiff has not presented any evidence controverting the matters set forth Kleppel's affidavit.
Chapter 3781 addresses the subject of building standards, while Chapter 3791 contains penalties for violating Chapter 3781, as well as containing other miscellaneous regulations.
If those two provisions of the Ohio Administrative Code had been applicable, the Court would have concluded that an appeal to the Board of Building Appeals would have been de novo and that the appellant would have had the right to call witnesses and to present oral argument. Sections 4101:2-1-75 and 4101:2-1-76 provide that hearings conducted by local certified boards of building appeals shall be conducted in accordance with the provisions of §§ 119.09-119.13 of the Ohio Revised Code. Section 119.09 permits a party to such a hearing to call witnesses. Moreover, Ohio courts have indicated that, when ruling on an appeal under 119.09, an administrative agency may make de novo findings of fact and conclusions of law. In re Certificate of Need Application of Providence Hospital, 67 Ohio App.3d 391, 587 N.E.2d 326 (1990); Blinn v. Ohio Bureau of Employment Services, 29 Ohio App.3d 77, 502 N.E.2d 665 (1985).
The quoted language tracks Ohio Administrative Code § 4101:2-1-75(A)(1)-(3).
The Court concludes that the matters set forth in the parties' Jointly Agreed Upon Stipulations of Fact and in Kleppel's affidavit demonstrate the absence of a genuine issue of material fact concerning the nature of the hearing to which the Plaintiff was entitled. Rather, that evidence establishes, as a matter of law, that the hearing would have been de novo and that the Plaintiff would have been permitted to present evidence and make oral arguments. Certainly, Kleppel's statement that the Board of Building Appeals does not give deference to a decision by the Director of the Department of Planning and Development demonstrates that said Board conducts an de novo appeal. Moreover, according to Kleppel, the Board of Building Appeals may reverse or modify an order under the three circumstances, quoted above. Those three circumstances are derived directly from § 4101:2-1-75(A)((1)-(3) of the Ohio Administrative Code. Appeals under § 4101:2-1-75 are governed by §§ 119.09-119.13 of the Ohio Revised Code. Ohio courts have indicated that, when ruling on an appeal under 119.09, an administrative agency may make de novo findings of fact and conclusions of law. In re Certificate of Need Application of Providence Hospital, 67 Ohio App.3d 391, 587 N.E.2d 326 (1990); Blinn v. Ohio Bureau of Employment Services, 29 Ohio App.3d 77, 502 N.E.2d 665 (1985). In addition, Kleppel indicates that an appellant is permitted to present testimony and to make oral arguments to the Board of Building Appeals.
Nevertheless, the Plaintiff argues that he did not have a right of appeal, because the October 10, 1994, nuisance abatement order directed him to file a notice of appeal with Code Enforcement Manager, while § 1323.07 of the Springfield Codified Ordinances provides that a notice of appeal be filed with the Secretary of the Board of Building Appeals. The Plaintiff has neither presented evidence nor argument that the directive in the abatement order, concerning filing a notice of appeal with the Code Enforcement Manager, caused him to suffer any detrimental effects. For instance, he has not argued that he attempted to appeal the order and was prevented because he filed his notice of appeal with the Code Enforcement Manager, rather than with the Secretary of the Board of Building Appeals. Therefore, the directive to file a notice of appeal with the Code Enforcement Manager, contained in the nuisance abatement order, does not change the uncontroverted facts that he had the right to appeal that order and that such an appeal would have been de novo, with Plaintiff having the right to call witnesses and to argue his position.
Based upon the foregoing, the Court concludes that the Plaintiff had a right of appeal that would have provided "a full and fair opportunity to argue his version of the facts and an opportunity to seek out review of any adverse findings." See Doc. #21 at 3. Therefore, principles of res judicata prevent the Plaintiff from litigating the issue of whether his property constituted a nuisance. Accordingly, the Court sustains the Defendant's Renewed Motion for Summary Judgment (Doc. #24) and overrules the Plaintiff's Motion for Summary Judgment (Doc. #25).
The Court's ruling herein unquestionably means that the Defendant is entitled to summary judgment on its counterclaim. It also appears that this ruling means that none of the Plaintiff's claims are viable, since they are predicated upon the theory that his property did not constitute a nuisance, when the Defendant's City Commission adopted Ordinance No. 95-406, authorizing the City Manager to enter into a contract, not to exceed $122,242, with Rumpke to remove and to dispose of the tires and shredded rubber which were located upon the his property and to seek to recover all sums expended in the effort. However, since the parties did not address that question in the motions for summary judgment, upon which the Court has ruled herein, the Court will not order that judgment be entered at this point. Rather, the Court directs the Defendant to file a supplemental motion for summary judgment, within 30 days from date, demonstrating that the Court's ruling herein entitles it to judgment on the claims set forth in Plaintiff's Complaint and upon the claim contained in its Counterclaim. Thereafter, the parties may brief the issue in accordance with Local Rule 7.2(a)(2).